Ronald v Harper [1910] HCA 43

Ronald v Harper [1910] HCA 43 - HCA 1910 case summary — Zoe

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the collection. One of the party mentioned this letter to the defendant, and the plaintiff's chances of election were discussed. Then the defendant said whatever he did say. That was the alleged publication. The election came on in December, and the plaintiff was defeated. On 11th March 1907 he applied to the Presbytery of South Melbourne for a written recommendation to the Home Mission Committee for employment, his occupation as a member of Parliament being gone. Stocks, who was present at the meeting, proposed that a committee should be appointed to inquire as to the plaintiff's suitability before he was recommended, and that motion was carried. The committee was appointed by the Presbytery, and on 8th April reported that the committee recommended the Presbytery to give a certificate in the follow- ing terms : - " It is hereby certified that the Rev. J. B. Ronald is a member of the Presbytery of Melbourne South as representative elder and has resided within its bounds since he vacated his charge; that he still holds his status as minister, and his services are now at the disposal of the Home Mission Committee." This report was adopted and the certificate was given. At the same meeting Stocks, who was present, said that facts had come to his knowledge with regard to the plaintiff which required inquiry. 'The plaintiff, who also was present, waived his right to any notice of the allegation, and Stocks then informed the Presbytery that the plaintiff had used bad language for which he had been reproved by the defendant. The plaintiff denied the charge and demanded that it should be put in writing. This was done in the following terms : - " In my presence and that of Mr. McLachlan, Mr. Robert Harper said he had reproved Mr. Ronald for the use of bad language (or for using bad language).'" It was then moved "that the Presbytery proceed no further with this accusation in view of (1) its vagueness and (2) the impossibility of obtaining the only witness within a reasonable time." That motion was carried. The reference to the impossibility of obtaining the only witness refers to the fact that the defendant was absent from Victoria. He remained absent until October 1907, when he returned. The plaintiff then wrote to the defendant asking him to deny the charge that he (the plaintiff) " had been reproved for

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telling filthy stories, using bad language, &c." The evidence which we have of the defendant's reply is that he wrote to the effect: "I now write that the statement that I told Mr. Stocks that I ever rebuked you for use of bad language is quite untrue, In November 1907 the plaintiff asked the Presbytery for an inquiry into the accusation brought against him by Stocks on 8th April 1907. It was then resolved by the Presbytery "that the Presbytery hold a meeting to deal with this matter on 19t/ November at 4 p.m., and that Mr. R. Harper, Mr. A. McLachlan Mr. F. Stocks and the Rev. J. B. Ronald, be requested to attend." The defendant replied by a letter in which he said : - "TI shall not be present at the Presbytery on the 19th inst. as it is not my wish to be in any way mixed up in the affair. Mr. Stocks has evidently made a mistake. I have some recollection of a conversation (a private one which therefore should not have been referred to in a Presbytery case without my permission) to which - I fancy Mr. Stocks must refer. Incidentally on the occasion - referred to Mr. Ronald's name came up. I think in connection with a letter he had written to the newspapers disclaiming some charge which had been made against his character when I casually remarked that I had heard it stated at Parliament House that some of his colleagues of the Labour Party disapproved of his conduct and that some of them had gone so far as to reprove Mr. Ronald for using improper language. That is all I have to say on the subject." These are all the facts of the case so far as regards publication. The case came on for trial before Hodges J., who directed the jury that the letter was written on a privileged occasion. He gave no direction as to privilege in respect of the alleged oral slander, and he left several questions to the jury. In answer to the question " what were the words used by the defendant in the conversation which took place between Stocks, McLachlan and himself on 23rd September 1906?" they said : - * He had heard that Ronald had been rebuked by some members of the Labour Party for using improper language or words to that effect." Thi negatived the allegation that the defendant had stated that had reproved the plaintiff for using low or improper or b language. They also found that the words were not spoken of

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The next objection was of the wrongful admission of evidence on the plea of justification. The evidence objected to under this head was tendered as relevant to the libel with the meanin: attached to the words by the innuendo. That has now become immaterial, because the jury found that the words did not bear that meaning. Another objection was that the defendant was allowed to give the following evidence : - " Mr. Mauger said to me when Mr. Ronald's name was mentioned that he did not think he would be returned. That the Labour Party were full up of him. That some of them found fault with him and had repri- manded him for using improper language, therefore he did not think he would be returned." It is objected that that evidence was inadmissible. The reason for objecting to it seems to me peculiar, that evidence of a conversation is necessarily inadmis- sible. The defendant had set up privilege. In order to establish privilege you must first of all show a privileged occasion. But the defence of privilege cannot be relied on if it has been abused. The plaintiff to prove abuse might show that the defendant did not believe that what he had said was true. The defendant might, it is true, wait for evidence that he did not believe it to be true; but he is surely entitled to add to his defence of privilege, "I did not abuse the occasion. What I said was strictly true." The evidence is admissible in any point of view. A propos I will refer to what Lindley LJ. said in Stuart v. Bell (1), a ease of privilege where the defendant had made use of language very much like that used in the present case. His Lordship said : - "I pass, therefore, to the consideration of the question of malice. If the occasion is privileged the plaintiff must prove malice in fact ; the burden of proving this is on him, as was settled in Clark v. Molyneux (2). Malice, in fact, is not confined to personal spite and ill-will, but includes every unjus- tifiable intention to inflict injury on the person defamed, or, in the words of Brett L.J., every wrong feeling in a man's mind: Clark v. Molyneux (3). There is no question here of the belief

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find that it was strictly true. It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious to another may be used under such cireumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact, and I do not think that, in a case such as this, the jury, in finding that the defendant used these words, intended to find that he meant to re-affirm the charge. * No case of that sort, at any rate, has been cited to us. But the proposition, that because the jury made a mistake on one issue their finding on another issue is vitiated, is entirely novel. Suppose that in an action of assault the defendant pleaded not guilty andarelease. A bad finding for the defendant on the question of release would not affect the finding on the question of not guilty, any more than, in an action for goods sold and delivered, where the defendant pleaded never indebted and payment, a wrong finding on one issue would affect the finding on the other. It might as well be said that, where a man had two causes of action and one of them was bad, and the jury gave a finding on both, both the findings could be set aside. Another question is raised which did not come before the Supreme Court, but is sought to be brought before us. It is this:

We are told that since the Supreme Court refused the motion for a new trial it has been discovered that some of the witnesses called on behalf of the defendant on an issue which the jury found to be immaterial - that is, on the innuendo - were guilty of perjury, that they had been suborned by a person whom the defendant had employed to collect evidence for the trial, and, further, that those witnesses have been convicted of perjury. It is further said that an attempt to connect the defendant with this impropriety had entirely failed. That matter was not before the Full Court as it was not discovered till afterwards. It is said we can receive that evidence for the purpose of granting a new trial. In my opinion this Court has no jurisdiction to receive evidence of that kind for the purpose of impeaching a judgment which has been given by the Supreme Court. The Judicial Committee of the Privy Council has, by Statute, authority to receive fresh

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Judgment (112 paragraphs)